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`UNITED STATES PATENT AND TRADEMARK OFFICE
`Trademark Trial and Appeal Board
`P.O. Box 1451
`Alexandria, VA 22313-1451
`General Contact Number: 571-272-8500
`General Email: TTABInfo@uspto.gov
`
`February 8, 2024
`
`Opposition No. 91287643
`
`Hugo Boss AG
`
`v.
`
`Jamie Elmore
`
`
`
`Ashlyn Lembree, Interlocutory Attorney:
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`An answer was due in this proceeding on November 22, 2023. 2 TTABVUE 3. On
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`December 3, 2023, the Board issued a notice of default under Fed. R. Civ. P. 55(a), for
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`failure to file an answer or other response. 4 TTABVUE. On January 2, 2024, counsel
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`for Applicant filed a notice of appearance along with a timely filed a response to the
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`order to show cause.1 5 TTABVUE and 6 TTABVUE. Applicant filed a proposed
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`answer with Applicant’s response to the notice of default. 6 TTABVUE 23-26.
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`The determination of whether default judgment should be entered against a party
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`lies within the sound discretion of the Board. See, e.g., Identicon Corp. v. Williams,
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`195 USPQ 447, 449 (Comm’r 1977). In exercising its discretion, the Board is mindful
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`of the law’s strong preference for deciding cases on their merits. See Paolo’s Assocs.
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`L.P. v. Bodo, 21 USPQ2d 1899, 1902 (Comm’r 1990); see also DeLorme Publ’g Co., Inc.
`
`
`1 The Board’s record has been updated to reflect the correspondence information provided for
`Applicant’s counsel.
`
`
`
`
`
`Opposition No. 91287643
`
`
`v. Eartha’s, Inc., 60 USPQ2d 1222, 1223 (TTAB 2000); Thrifty Corp. v. Bomax Enters.,
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`228 USPQ 62, 63 (TTAB 1985). Accordingly, the Board generally is reluctant to enter
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`a default judgment for failure to file a timely answer, and tends to resolve doubt on
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`the matter in favor of the defendant. Paolo’s, 21 USPQ2d at 1902. See also
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`TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 312.02
`
`(2023).
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`The Board will set aside entry of default if a defendant who has failed to file a
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`timely answer to the complaint files a satisfactory showing of good cause why default
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`judgment should not be entered against it. See Fed. R. Civ. P. 55(c); see also TBMP
`
`§ 312.02. Good cause for discharging default is generally found if (1) the delay in filing
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`is not the result of willful conduct or gross neglect, (2) the delay will not result in
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`substantial prejudice to the opposing party, and (3) the defendant has a meritorious
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`defense. See DrDisabilityQuotes.com, LLC v. Krugh, 2021 USPQ2d 262, at *2 (TTAB
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`2021) (setting aside notice of default; one-day delay in filing motion to dismiss); Fred
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`Hayman Beverly Hills, Inc. v. Jacques Bernier, Inc., 21 USPQ2d 1556, 1557 (TTAB
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`1991) (nine-day delay).
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`In the response, Applicant states that Applicant was “unable to secure legal
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`representation in this matter until December 21, 2023, after the deadline to answer
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`the opposition lapsed and in the midst of the holiday season.” 6 TTABVUE 4.
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`Here, the record does not show that Applicant’s failure to timely answer the notice
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`of opposition was willful or in bad faith, or that Opposer will suffer prejudice given
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`that this proceeding is in its early stages, and the delay occasioned by Applicant’s
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`
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`2
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`
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`Opposition No. 91287643
`
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`default has been minimal. Applicant adhered to the preferred practice of filing a late
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`answer concurrently with its response. The answer is compliant with Fed. R. Civ. P.
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`8(b) and indicates that Applicant seeks to set forth a plausible response to the
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`allegations and to pursue a meritorious defense for consideration on the merits at
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`trial.2 See TBMP § 311.02. Based on these findings, Applicant has shown the requisite
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`good cause to set aside default for failure to file a timely answer. Accordingly, the
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`notice of default is hereby set aside, and judgment will not be entered against
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`Applicant on the basis of default.
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`Notwithstanding the ruling to set aside default, Applicant and its counsel are
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`advised to adhere to all deadlines, including discovery and trial deadlines, and are
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`expected to remain abreast of this proceeding through utilizing TTABVUE. See
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`TBMP § 110.01.
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`Applicant’s late answer is acknowledged, and is accepted as Applicant’s operative
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`pleading in this proceeding.
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`Accordingly, conference, disclosure, discovery and trial dates, are reset as follows:
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`Deadline for Discovery Conference
`Discovery Opens
`Initial Disclosures Due
`Expert Disclosures Due
`Discovery Closes
`Plaintiff's Pretrial Disclosures Due
`Plaintiff's 30-day Trial Period Ends
`Defendant's Pretrial Disclosures Due
`Defendant's 30-day Trial Period Ends
`Plaintiff's Rebuttal Disclosures Due
`Plaintiff's 15-day Rebuttal Period Ends
`
`2 The showing of a meritorious defense does not require an evaluation of the merits of the
`case. All that is required is a plausible response to the allegations in the complaint. See
`DeLorme Pub’g, 60 USPQ2d at 1224.
`
`3/15/2024
`3/15/2024
`4/14/2024
`8/12/2024
`9/11/2024
`10/26/2024
`12/10/2024
`12/25/2024
`2/8/2025
`2/23/2025
`3/25/2025
`
`
`
`3
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`
`
`Opposition No. 91287643
`
`
`Plaintiff's Opening Brief Due
`Defendant's Brief Due
`Plaintiff's Reply Brief Due
`Request for Oral Hearing (optional) Due
`
`5/24/2025
`6/23/2025
`7/8/2025
`7/18/2025
`
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`Generally, the Federal Rules of Evidence apply to Board trials. Trial testimony is
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`taken and introduced out of the presence of the Board during the assigned testimony
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`periods. The parties may stipulate to a wide variety of matters, and many
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`requirements relevant to the trial phase of Board proceedings are set forth in
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`Trademark Rules 2.121 through 2.125. These include pretrial disclosures, the
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`manner and timing of taking testimony, matters in evidence, and the procedures for
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`submitting and serving testimony and other evidence, including affidavits,
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`declarations, deposition transcripts and stipulated evidence. Trial briefs shall be
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`submitted in accordance with Trademark Rules 2.128(a) and (b). Oral argument at
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`final hearing will be scheduled only upon the timely submission of a separate notice
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`as allowed by Trademark Rule 2.129(a).
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`TIPS FOR FILING EVIDENCE, TESTIMONY, OR LARGE DOCUMENTS
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`The Board requires each submission to meet the following criteria before it will be
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`considered: 1) pages must be legible and easily read on a computer screen; 2) page
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`orientation should be determined by its ease of viewing relevant text or evidence, for
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`example, there should be no sideways or upside-down pages; 3) pages must appear in
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`their proper order; 4) depositions and exhibits must be clearly labeled and numbered
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`– use separator pages between exhibits and clearly label each exhibit using sequential
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`letters or numbers; and 5) the entire submission should be text-searchable.
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`Additionally, submissions must be compliant with Trademark Rules 2.119 and 2.126.
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`
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`4
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`
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`Opposition No. 91287643
`
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`Submissions failing to meet all of the criteria above may require re -filing. Note:
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`Parties are strongly encouraged to check the entire document before filing. 3 The
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`Board will not extend or reset proceeding schedule dates or other deadlines to allow
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`time to re-file documents. For more tips and helpful filing information, please visit
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`the ESTTA help webpage.
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`3 To facilitate accuracy, ESTTA provides thumbnails to view each page before submitting.
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`5
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`
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